Why You Need a Social Media Policy

 

Only an estimated 25% of employers have a social media policy. You could say that the other 75% are in denial if they think they don't need one. Because of the ubiquity and pervasiveness of social media, nearly every business is affected by it. Even a business that doesn't make use of social media for recruiting or branding purposes can be affected by what others post about it, including its own employees. And unless employees have clear guidance to tell them what type of social media posting is acceptable and what is not, they may (and often do) think they have free reign to post whatever they want, including information about the company. This could pose liability for you. So here are five reasons why you need a social media policy.

1. Employees don't realize they owe you a duty of loyalty when they're off the clock. Employees owe a common law duty of loyalty to their employer, and this duty doesn't end at the end of their shift -- it goes with them when they head out the door. The problem is, most employees don't know this. This means that an employee who makes a derogatory Facebook post about your company or your customers can be terminated. If an employee's conduct puts your organization in a negative light, you can discipline or terminate the employee -- even though the post occurred on the employee's own time, on the employee's own computer.

Here's an example: A waitress at a pizza place had to work an hour longer than her scheduled shift to take care of a table that sat for hours. At the end of the night, and for all her trouble, they left her a very small tip. She was upset, and complained about the customers on her Facebook page. Her employer had a policy prohibiting employees from disparaging the restaurant or its patrons on social media sites, and her employment was terminated. Even if the restaurant hadn't had a policy, her employment could have been terminated because of the common law duty of loyalty, but the policy put her on notice of what constituted unacceptable conduct and made the restaurant's position clear.

2. Employees don't understand the nature of social media. Many employees don't understand that Facebook is not necessarily private, or the fact that the great majority of what they post on social media is in the public domain, there for anyone to read. Many don't know that even anonymous posts can be traced. And many may think that if you post something, once you delete it, it's deleted for good. But that is not necessarily the case.

Example: A single mother who worked for a nonprofit by day ran an anonymous sex blog by night. Her employer never knew until she slipped up. When she opened a Twitter account, she logged in using her real name, thinking it wouldn't show. When she realized it did, she quickly deleted it and changed her account name. Her efforts were for naught, however. Twitter posts, once deleted, are still searchable. Her employer checked on her and found her Twitter account, which linked to her blog. She was terminated from her job for putting her employer in a negative light.

Employees must know that they lose control over whatever they post as soon as it's posted. Anything can "go viral" or be reposted by anyone who reads it -- even a posting from a private chat room could be copied and pasted on someone's Facebook page and begin to spread.

3. Employees need guidelines on what is acceptable and what is not. Employees probably know that they shouldn't use the company logo on their personal website, mention trade secrets in a chat room, or blog about information that is considered confidential (another employee's medical condition, perhaps). They probably know they shouldn't use LinkedIn to lure employees away to a competitive business, make a disparaging YouTube video at work, or say anything discriminating or harassing about coworkers. But these things still happen.

Disciplinary action is easier to justify when you have a clear policy that forbids this type of conduct, instead of disciplining an employee for conduct she didn't realize was prohibited. Employees may think that if there is not a policy against it, then it is fair game. They may not always use common sense when it comes to social media.

4. The Federal Trade Commission has a requirement. About a year ago, the Federal Trade Commission (FTC) issued revised Endorsement Guides. These Guides have to do with truth in advertising online. In brief, they state that if an individual is affiliated with a company and endorses its products or services online, the individual must disclose his or her relationship to the company.

For example, if an employee gets involved in an online discussion about power drills, and recommends one your company makes, and another individual in the chat room relies on this discussion, buys the drill, and gets injured because of a design flaw, that individual could try to hold you liable because it was your employee who recommended the product. So be sure employees are aware that if they recommend your product or service in an online forum, they must disclose their relationship to your organization.

5.  Employers need guidelines, too. If you are vetting candidates on Facebook, how far do you go? Are you only looking at what is publicly available, or are you asking applicants and employees for passwords or URLs to their private Facebook page? If you are investigating current employees on the internet, do you believe you have the authority to look at their private websites? Must you get their permission? Is their permission a condition of employment?

Many questions are raised when employers use social media for employment purposes, and there are few guidelines available. If you are looking at public sites, they are in the public domain, and fair game. If you are trying to look at private sites, however, sites that employees or applicants have specifically limited public access to, the line becomes blurry. If you have authorization to look at a Facebook page, then you can, but that authorization must be freely given. If the authorization is necessary for an employee to get or keep a job, the word "freely" may no longer apply.

Consider this example: Two restaurant employees started a password-protected, invitation-only chat room on MySpace to vent about work. One of their coworkers, the hostess, happened to mention the chat room at a party to one of the managers. She was asked for the password, and felt her job was in jeopardy if she didn't give it, so she did. The manager then gave the password to other managers, and the site was accessed repeatedly, resulting in the termination of the two employees. They sued their employer and won, because the court held that the employer's "strong-arm" tactic to gain access went too far. In fact, the court awarded punitive damages to the former employees to punish the employer.

You may also have to deal with supervisors using Facebook to investigate employees; supervisors "friending" employees (and trying to maintain a professional relationship at work while fostering a personal relationship outside of work); and writing recommendations for former employees on LinkedIn that may be perceived as a recommendation from the company, or that may not be consistent with information you give out as a reference. 

As you can see, the interactive internet poses much more risk and liability than passive internet browsing did. And if you are not on top of it, controlling what you can, you may find yourself doing damage control after something has already happened instead of proactively avoiding the situation in the first place.

About the Author: J. J. Keller & Associates, Inc. ® helps Human Resource Professionals improve the way they manage people and contribute value to their organizations.